This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-1740

 

 

Reverend Beck #154970, f/k/a

David Wayne Vanderbeck, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 19, 2001

Affirmed

Halbrooks, Judge

 

Ramsey County District Court

File No. K8932865

 

Reverend Beck, f/k/a David Wayne Vanderbeck, #154970, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this appeal from an order denying a motion to correct his sentence, appellant argues that the district court erred in construing the motion as a postconviction petition and in refusing to appoint counsel for appellant.  Appellant also argues that the double upward departure for second-degree felony murder, without jury determination on the reasons for departure, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  Because appellant’s sentence is lawful and he is not entitled to a public defender, we affirm.

FACTS

            Appellant Reverend Beck (a/k/a David Wayne Vanderbeck) pleaded guilty to murder in the second degree.  The sentencing court granted the state’s motion for a double upward departure from the presumptive sentence, and appellant was sentenced to 360 months.  With the aid of a public defender, appellant unsuccessfully challenged his conviction on a direct appeal to this court.  State v. Vanderbeck, No. C6-94-1034, 1995 WL 34843 (Minn. App. Jan. 31, 1995), review denied (Minn. App. Mar. 29, 1995).  In affirming the upward departure, we found that the sentencing court properly relied on “sufficient aggravating factors” such as the victim’s vulnerability and appellant’s “deliberate thought.”  See id. at *2.  Moreover, we added

[i]t is also an aggravating factor justifying a departure if the current offense involves victim injury and the defendant has a prior felony conviction for an offense involving injury to a victim.  This factor alone may support a double departure.

 

Id. at *3 (citations omitted); see also Minn. Sent. Guidelines II.D.2.b.(3).

            Appellant moved to vacate, set aside, or correct his sentence.  His motion clearly indicated that he wanted to bring this motion under Minn. R. Crim. P. 27.03, subd. 9.  Appellant argued that his sentence was not authorized by law because under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), his sentence could not be increased without the benefit of a jury.  In his motion, appellant also requested appointment of counsel because he believed that his health conditions would impair his ability to stand and argue pro se before a judge.

The Minnesota State Public Defender’s office notified the district court administrator that it would not provide assistance to appellant.  The office noted that, because appellant had already received assistance in a direct appeal from his conviction, it would not provide additional assistance in postconviction matters.

            Appellant wrote to the court administrator, noting that it had listed his motion as being brought under Minn. Stat. § 590.02 (2000), not Minn. R. Crim. P. 27.03.  Appellant explained that he was worried this change was a deliberate “manipulat[ion of his motions] into a 590 Postconviction Petition ‘out of thin air’ and at obvious advantage to the state.”

            The district court denied appellant’s motions.  The district court dismissed appellant’s request for counsel because appellant already had received counsel from the public defender for his direct appeal.  Additionally, the district court held that although Minn. R. Crim. P. 27.03 might provide a separate means of relief, the court could treat appellant’s motion as a motion brought under Minn. Stat. § 590.02 (2000).  Finally, the court ruled that Apprendi was inapplicable here.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that both this court and the district court have misconstrued the type of motion he made.  He argues that construing his motion as one brought under Minn. Stat. ch. 590 (2000) for postconviction relief, rather than under Minn. R. Crim. P. 27.03, creates an unfair advantage for the state.  He also contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), a recent U.S. Supreme Court decision, his sentence is unconstitutional.

            Under Minn. R. Crim. P. 27.03, subd. 9, “[t]he court at any time may correct a sentence not authorized by law.”  Similarly, a defendant may also bring a motion for postconviction relief under Minn. Stat. § 590.01, subd. 1(1), if “the sentence * * * violate[s] the person’s rights under the Constitution or laws of the United States or of the state.”

            We begin by noting that an appeal from an order denying a motion for sentence correction or modification may be treated as an appeal from denial of postconviction relief.  State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995); see also State v. Stutelberg, 435 N.W.2d 632, 635 (Minn. App. 1989) (holding motion under Minn. R. Crim. P. 27.03, subd. 9, can be considered a “post-conviction proceeding”).  Therefore, there is no error in construing appellant’s motion as one for postconviction relief.

In regard to the merits of appellant’s motion, we find that appellant’s sentence is authorized by law.  Appellant argues that under Apprendi, his sentence violates due process because the sentencing court increased his sentence using “facts” not submitted to a jury.  Requiring the jury to find such facts to be proven beyond a reasonable doubt before they are used to increase a sentence beyond the maximum sentencing guideline ensures that a defendant receives due process.  State v. Grossman, 622 N.W.2d 394, 396 (Minn. App. 2000).

But appellant misstates Apprendi by failing to recognize that

[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

 

Apprendi, 530 U.S. at 488-90, 120 S. Ct. at 2362-63 (emphasis added).  Appellant received a sentence of 360 months, which is within the statutory maximum.  See Minn. Stat. § 609.19(2) (1992) (setting maximum sentence for second-degree murder at 480 months).  Additionally, the sentencing court could have used the sole factor of appellant’s prior conviction to support a double departure.  Vanderbeck, 1995 WL 34843, at *3; see also Minn. Sent. Guidelines II.D.2.b.(3).  Therefore, appellant’s sentence is not unconstitutional.

II.

 

            Appellant also argues that the district court erred by refusing to appoint him counsel.  Appellant asserts that he needs legal assistance to argue his claim successfully because he is physically incapable of making a presentation in court because his injuries make standing and concentrating difficult. 

We find that the district court did not err when it denied appellant the assistance of a public defender.  Pursuant to statute,

[a] person financially unable to obtain counsel who desires to pursue [postconviction relief] may apply for representation by the state public defender.  The state public defender shall represent such person * * * if the person has not already had a direct appeal of the conviction. The state public defender may represent, without charge, all other persons pursuing a postconviction remedy * * * who are financially unable to obtain counsel.

 

Minn. Stat. § 590.05.  We have previously interpreted the statute to uphold a public defender’s discretion to refuse to represent an indigent client who already received assistance in a direct appeal from conviction.  Gibson v. State, 569 N.W.2d 421, 423 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  The present case is exactly the same:  appellant has already received assistance from the public defender for his direct appeal.  Thus, the public defender can—and here did—decline to represent appellant.

Moreover, we note that although appellant is injured, his condition does not necessitate involvement of an attorney.  For example, the district court could make accommodations for him so that he would not have to stand during arguments.  Therefore, there is no abuse of discretion in denying appellant’s motion for counsel.

Affirmed.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.